By Mario Pozzi, Partner

Abstract

In global standard-essential patent (SEP) disputes, litigation strategy is no longer confined to infringement, validity, and FRAND royalties. Increasingly, the outcome of these disputes is shaped by procedural tools such as anti-suit injunctions (ASIs), anti-anti-suit injunctions (AASIs), and emerging anti-interim-license injunctions (AILIs).

These mechanisms allow courts to influence where disputes are litigated, how negotiations unfold, and whether patent rights can be enforced in real time.

For General Counsel, understanding how different jurisdictions deploy these tools is essential to managing both legal risk and commercial exposure in multi-jurisdictional SEP conflicts.

From FRAND to Forum Control

Global SEP litigation is undergoing a structural shift. What was once primarily a debate over royalty rates and injunctive relief has evolved into a broader contest over forum selection, timing, and judicial leverage.

Implementers often seek centralized or strategically favorable forums to manage exposure and avoid inconsistent decisions. Patent owners, in turn, argue that such tactics can undermine the territorial nature of patent rights and delay effective enforcement.

Both perspectives are defensible. The practical reality for legal departments, however, is that procedure is no longer neutral. It is actively used to shape negotiation dynamics before the merits are decided.

This is most visible in the increasing use of:

• Anti-suit injunctions (ASIs)
• Anti-anti-suit injunctions (AASIs)
• Anti-interim-license injunctions (AILIs)

Together, these tools define the modern battleground of global SEP disputes.

Understanding the Tools

An anti-suit injunction (ASI) prevents a party from initiating or continuing proceedings in another jurisdiction. While traditionally used to avoid duplicative litigation, in SEP disputes ASIs are often deployed to block enforcement actions in patent-friendly forums.

An anti-anti-suit injunction (AASI) is the countermeasure: it prevents the opposing party from seeking or enforcing an ASI. Courts typically justify AASIs as necessary to protect their ability to adjudicate domestic patent rights.

The newest category, the anti-interim-license injunction (AILI), targets attempts to obtain interim licensing relief abroad. Even where such relief is formally non-binding, courts may treat it as functionally equivalent to a procedural constraint, particularly if it alters negotiation leverage or discourages injunctive enforcement.

For General Counsel, the key point is simple: these tools do not just manage litigation—they reshape commercial negotiations.

China: Procedural Power with Global Impact

China has been central to the modern rise of ASIs in SEP disputes.

Since 2020, Chinese courts have issued ASIs restraining foreign enforcement in global FRAND disputes, often backed by daily financial penalties for non-compliance. This has transformed ASIs into highly effective tools capable of shifting the center of gravity in multinational disputes.

The resulting tensions culminated in proceedings before the World Trade Organization, where the European Union challenged whether such practices interfere with patent rights under the TRIPS Agreement.

Takeaway for GCs: China demonstrates how a single jurisdiction, through assertive procedural tools, can exert disproportionate influence over global licensing negotiations—even beyond its borders.

United States: Doctrinal Stability, Strategic Relevance

The United States has long recognized anti-suit injunctions, grounded in principles of equity, comity, and protection of domestic jurisdiction.

While U.S. courts apply these measures cautiously, their doctrinal foundation remains strong. In BMW v. Onesta, for example, a U.S. court enjoined foreign proceedings involving U.S. patents, reinforcing the principle that U.S. patent disputes belong in U.S. courts.

Unlike some jurisdictions, the U.S. has not driven recent SEP-specific ASI escalation. However, it remains a critical defensive forum, particularly where foreign proceedings seek to undermine U.S. adjudication.

Takeaway for GCs: U.S. courts are less aggressive in this space—but when core jurisdictional interests are at stake, they can intervene decisively.

Japan: A Managed, Cooperation-Driven Model

Japan is emerging as a nuanced and potentially influential SEP forum.

In Pantech v. Google (2025), the Tokyo District Court granted a SEP injunction while placing significant weight on the implementer’s conduct during negotiations, particularly its failure to provide relevant information.

Japan has also introduced court-guided mediation frameworks for global FRAND disputes. Unlike the UK, these processes appear more explicitly non-binding but still exert meaningful pressure through judicial supervision.

Takeaway for GCs:

Japan may become a forum where procedural cooperation effectively determines outcomes, even without formal rate-setting authority.

Brazil: Sovereignty and Strategic Leverage

Brazil is gaining importance, particularly in sectors such as connected vehicles, where local enforcement can have immediate commercial consequences.

Although ASI-specific jurisprudence is still developing, Brazilian courts have emphasized that foreign judgments cannot restrict access to domestic courts without proper recognition procedures.

This reinforces Brazil’s position as a jurisdiction where local procedural autonomy prevails over foreign tactical orders.

Takeaway for GCs: Brazil is not just a secondary market—it can serve as a high-impact enforcement venue resistant to foreign procedural constraints.

UPC: The Rise of a Procedural Powerhouse

The Unified Patent Court has quickly established itself as one of the most assertive forums in global SEP litigation—both substantively and procedurally.

A Demanding Approach to FRAND

In Huawei v. Netgear (2024), the UPC adopted a pragmatic, conduct-based interpretation of the Huawei v. ZTE framework, rejecting a more formalistic approach advanced by the European Commission.

The Court clarified that:

• willingness must be assessed holistically
• objections must be raised during negotiations, rather than only in litigation
• implementers must provide counteroffers, information, and security without delay

Failure to meet these standards results in loss of the FRAND defense.

The Court also indicated that pool licenses may satisfy FRAND obligations, a position with potentially significant antitrust implications.

Aggressive Use of Interim Measures

The UPC has shown a consistent willingness to issue ex parte anti-anti-suit and anti-enforcement injunctions, backed by substantial penalties.

Cases such as Avago v. Realtek, Huawei v. Netgear, and Nokia v. Sunmi demonstrate a clear pattern: the Court treats interference with UPC proceedings as interference with the patent right itself.

Expanding into Interim Licensing (AILIs)

In InterDigital v. Amazon, the UPC extended its reach into interim licensing, preventing efforts to obtain UK-based interim relief.

Crucially, the Court held that even non-binding judicial measures may justify intervention if they exert practical pressure on negotiations.

This marks a significant expansion of anti-suit logic into commercial leverage management.

A Forum Shaping Global Dynamics

The UPC is no longer just a European venue—it is actively defining the limits of acceptable cross-border litigation strategy, often in direct interaction with UK and U.S. courts.

Takeaway for GCs: The UPC combines fast procedure, strong remedies, and strategic assertiveness, making it one of the most influential forums in global SEP disputes.

Practical Implications for General Counsel

The rise of ASIs, AASIs, and AILIs confirms a fundamental shift: SEP disputes are now as much about procedural control as substantive rights.

General Counsel should consider four key principles:

1. Plan forum strategy early

Do not wait for litigation. Identify where counterparties may seek procedural leverage.

2. Maintain consistency across jurisdictions

Negotiation conduct, disclosures, and litigation positions will be scrutinized globally.

3. Anticipate escalation

A single procedural move can trigger multi-forum retaliation, increasing cost and complexity.

4. Treat procedural disputes as core strategy

These tools directly impact settlement pressure, enforcement timing, and portfolio value.

Conclusion

In modern SEP litigation, the key question is no longer who is right, but increasingly who controls the playing field.

Anti-suit injunctions and their variants have transformed procedure into a central strategic battleground. Companies that understand and anticipate this procedural architecture will be far better positioned to manage both legal exposure and commercial outcomes in an increasingly fragmented global system.